In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 14 March 2017

Review of Professor Thomas Höppner's Lecture In Support of Neighbouring Right for Press Publishers

This
1709 intern was delighted to attend a lecture given by Professor Doctor Thomas
Höppner at the University of Glasgow on February 14th of
this year. The lecture was entitled “EU copyright reform: the
case for a related right for press publishers and was part
of a series, ‘Copyright and Brexit’, hosted by CREATe. The talk
given by Professor Höppner argued in support of the introduction of the press
publishers’ right in Article 11(1)cogent duet of The Proposal for a
Directive of the European Parliament and of the Council on copyright in the
Digital Single Market. Professor Höppner participated in the EPP Group’s panel hearing on publishers’
rights on 11 January 2017. This writer previously discussed the topic of the
proposed neighbouring right for press publishers here, and further
information can be found here, here and here. My summary of
Professor Höppner’s cogent presentation is as follows.

Professor Thomas Höppner

The
purpose of the proposed neighbouring right for press publishers is to bring a
level-playing field to both press publishers and news aggregators regarding the
business models that press publishers have embraced. Specifically, the business
model embraced by press publishers is to generate attractive content, thereby
attracting consumers to their sites, which in turn attract advertising/subscriber
revenue. In the news industry, the creation of attractive content entails, inter alia, the employment of
journalists on a global scale (often in dangerous locations) and editing
content to journalistic standards – activities which require considerable
investment.

The
business model employed by content aggregators, in contrast, is aimed at using
the content of 3rd party press publications to attract users to its
site, thereby generating advertising revenue. By visiting news aggregators,
consumers can peruse content generated by a myriad press publishers on one
webpage. Essentially, aggregators are competing directly with press publishers
for advertising revenue from the same
content, yet aggregators must not go to the expense of
generating that content. Professor Höppner argues that this is a classic case
of a market failure that must be addressed.

Copying content is
always cheaper than generating content. Professor Höppner argues
that there are probably a greater number of start-ups which utilise an
aggregation business model than start-ups engaged in the production of news –
why bother investing millions in a global network of journalists, editorially
review their work and build a trustworthy news brand if you can easily
aggregate the news content generated by others?

The
Commission’s impact assessment found that 47%
of users of news aggregators never click through on to the site of the news
publisher – they simply glean all the information they need from the news
aggregator’s site. This figure suggests that advertising revenue is being lost
by news publishers to news aggregators for the content that news publishers
went to the trouble and expense to create.

The
rise of “fake news” also highlights the importance of the unique editorial responsibility
of press publishers. The new right of press publishers, Professor Höppner
argues, reflects the importance of the unique editorial responsibility of press
publishers. It is the value of the editing undertaken by trustworthy news
brands, providing genuine content and analysis, which forms the basis of this
new right.

The
legal framework must ensure that there is an economic incentive for press
publishers to continue to invest in, generate and moderate high quality news
content. The traditional legal framework to incentivise creators of cultural
products has been copyright, and this new neighbouring right resonates directly
with the other neighbouring rights found in the InfoSoc Directive (the rights
bestowed upon phonograph producers, the producers of films and broadcasting
organisations).

Professor Thomas Höppner

Professor
Höppner also addressed some misconceptions around the proposed new right:

In some way, this right
could harm journalists.

There
exists the misconception that journalists would be harmed by this new right. On
the contrary, it is important to keep in mind that journalists want to be paid
for their work. It is true that some journalists may gain greater web exposure
through news aggregators.Yet it may be
reasonable to conclude that journalists would rather be paid by press
publishers for content than to gain greater exposure from news aggregators (for
which they receive no remuneration). Currently, news aggregators pay nothingto journalistsfor the use of the content generated by journalists. This proposed
right is about protecting the news industry as a whole, of which journalists
are at the core.

The right is too wide.

If
you look at it, this is not the case: in order to attract protection, the right
requires, inter alia, the fixation of
a collection of literary works of a journalistic nature, in a periodical,
regularly updated publication, in which there exists editorial responsibility. In
this respect, the law is not any wider than for any other neighbouring rights.
There, too, the
fixationis what is protected, with
the consequence that any section thereof, e.g. a film sequence or a news
snippet, would be protected against a reproduction.

Finally,
a major difficulty for press publishers in enforcing their rights in the
copyright of the content they publish is in proving standing – the chain of
title of copyright must be proved before a case can be brought. Press
publishers almost always own the copyright in the content they publish, through
the legal mechanisms of assignation of copyright through employment contracts,
or (in jurisdictions where assignation is not possible) through exclusive
licensing. Yet proving the chain of title can be a cumbersome legal process.
With the new press publishers’ right, this significant difficulty is vanished,
thereby strengthening the position of news publishers and making enforcement
less problematic.

The
debate surrounding the proposed new press publishers’ right is certainly a
heated one, which is likely to continue in the coming months. Many thanks go to
Professor Höppner for his cogent argument in favour of the proposed press
publishers’ right. This writer is waiting with curiosity to observe how the
debate surrounding the press publisher right unfolds in the coming months.

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